Questions Investigators Will Ask to Probe for Retaliation
Workplace retaliation is illegal under Title VII, which contains anti-discrimination, anti-harassment, and anti-retaliation provisions. The questions, listed below, come from the EEOC and provide you with an idea of the kind of questions an investigator will be contemplating, in the event you file a complaint of workplace retaliation. These are just some of the considerations that would be part of a formal complaint:
1. Did the employee oppose discrimination in the workplace? (retaliation based on a complaint of discrimination)
a. Did the employee explicitly or implicitly communicate to the employer or another covered entity a belief that its activity constituted unlawful discrimination under Title VII…?
b. If the protest was broad or ambiguous (an employee didn’t come right out and say they felt they were the victim of discrimination), would the employee’s protest reasonably have been interpreted as opposition to such unlawful discrimination?
c. Did someone closely associated with the employee oppose discrimination?
2. Did the employee have a reasonable and good faith belief that the practice they were opposing opposed practice violated the anti-discrimination laws?
a. If so, the employee is protected against retaliation, even if s/he was mistaken about the unlawfulness of the challenged practices. If not, the employee is not protected under the anti-retaliation clauses.
3. Did the employee participate in the statutory complaint process?
a. Did the employee or someone closely associated with the employee file a charge, or testify, assist, or participate in any manner in an investigation, proceeding, hearing, or lawsuit under the statutes enforced by the EEOC?
b. If so, the employee is protected against retaliation regardless of the validity or reasonableness of the original allegation of discrimination.
4. Did the employer subject the employee to any kind of adverse action? An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Examples of adverse actions include: employment actions such as termination, refusal to hire, and denial of promotion and other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance [heightened scrutiny].
5. Is there direct evidence that retaliation was a motive for the adverse action?
a. Did the employer, manager, etc. admit that it undertook the adverse action because of the protected activity?
b. Did the employer, manager, etc. express bias against the employee based on the protected activity? If so, is there evidence linking that statement of bias to the adverse action? Such a link would be established if, for example, the statement was made by the decision-maker at the time of the challenged action.
6. Is there circumstantial evidence that retaliation was the true reason for the adverse action?
a. Is there evidence raising an inference that retaliation was the cause of the adverse action? Such an inference is raised if the adverse action took place shortly after the protected activity and if the decision-maker was aware of the protected activity before undertaking the adverse action.
b. If there was a long period of time between the protected activity and the adverse action, is there other evidence raising an inference that the cause of the adverse action was retaliation?
7. Has the employer produced evidence of a legitimate, nondiscriminatory reason for the adverse action?
a. Is the employer’s explanation a pretext designed to hide retaliation? (Readers: many employers come up with fraudulent, non-discriminatory reasons for adverse actions. These are called pretexts and have been discussed on this blog many times. A pretext is a cover story that is used to create a non-race related reason for events that have transpired at work. Any smart employer will try to come up with a good pretext, a legitimate reason for targeting an employee. This, an employer hopes, would prevent the company from being found guilty of violating Federal workplace statutes.)
b. Did the employer treat similarly situated employees who did not engage in protected activity differently from the employee?
c. Did the employer subject the employee to heightened scrutiny after s/he engaged in protected activity?
These are just some of the questions that an investigator will seek answer for. If, on the basis of all of the evidence, the investigator is persuaded that retaliation was the true reason for the adverse action, then "cause" should be found.
Source: http://www.eeoc.gov/policy/docs/retal.html
1. Did the employee oppose discrimination in the workplace? (retaliation based on a complaint of discrimination)
a. Did the employee explicitly or implicitly communicate to the employer or another covered entity a belief that its activity constituted unlawful discrimination under Title VII…?
b. If the protest was broad or ambiguous (an employee didn’t come right out and say they felt they were the victim of discrimination), would the employee’s protest reasonably have been interpreted as opposition to such unlawful discrimination?
c. Did someone closely associated with the employee oppose discrimination?
2. Did the employee have a reasonable and good faith belief that the practice they were opposing opposed practice violated the anti-discrimination laws?
a. If so, the employee is protected against retaliation, even if s/he was mistaken about the unlawfulness of the challenged practices. If not, the employee is not protected under the anti-retaliation clauses.
3. Did the employee participate in the statutory complaint process?
a. Did the employee or someone closely associated with the employee file a charge, or testify, assist, or participate in any manner in an investigation, proceeding, hearing, or lawsuit under the statutes enforced by the EEOC?
b. If so, the employee is protected against retaliation regardless of the validity or reasonableness of the original allegation of discrimination.
4. Did the employer subject the employee to any kind of adverse action? An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Examples of adverse actions include: employment actions such as termination, refusal to hire, and denial of promotion and other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance [heightened scrutiny].
5. Is there direct evidence that retaliation was a motive for the adverse action?
a. Did the employer, manager, etc. admit that it undertook the adverse action because of the protected activity?
b. Did the employer, manager, etc. express bias against the employee based on the protected activity? If so, is there evidence linking that statement of bias to the adverse action? Such a link would be established if, for example, the statement was made by the decision-maker at the time of the challenged action.
6. Is there circumstantial evidence that retaliation was the true reason for the adverse action?
a. Is there evidence raising an inference that retaliation was the cause of the adverse action? Such an inference is raised if the adverse action took place shortly after the protected activity and if the decision-maker was aware of the protected activity before undertaking the adverse action.
b. If there was a long period of time between the protected activity and the adverse action, is there other evidence raising an inference that the cause of the adverse action was retaliation?
7. Has the employer produced evidence of a legitimate, nondiscriminatory reason for the adverse action?
a. Is the employer’s explanation a pretext designed to hide retaliation? (Readers: many employers come up with fraudulent, non-discriminatory reasons for adverse actions. These are called pretexts and have been discussed on this blog many times. A pretext is a cover story that is used to create a non-race related reason for events that have transpired at work. Any smart employer will try to come up with a good pretext, a legitimate reason for targeting an employee. This, an employer hopes, would prevent the company from being found guilty of violating Federal workplace statutes.)
b. Did the employer treat similarly situated employees who did not engage in protected activity differently from the employee?
c. Did the employer subject the employee to heightened scrutiny after s/he engaged in protected activity?
These are just some of the questions that an investigator will seek answer for. If, on the basis of all of the evidence, the investigator is persuaded that retaliation was the true reason for the adverse action, then "cause" should be found.
Source: http://www.eeoc.gov/policy/docs/retal.html
Labels: discrimination, EEOC positions, pretext, retaliation
posted by S. Mary Wills at 9:07 AM
2 Comments:
I think it's a bit naive to think that the EEOC investigator will actually go and ask all those questions. That is what the investigator *should* be asking. The EEOC is horribly underfunded - some would say it was intentionally defunded over the last eight years. Sadly, most investigators do nothing more than mail a copy of the charge to the employer and ask for a response. That's their entire investigation. Your posting of the EEOC materials is helpful, however. I think anyone going to the EEOC should have a written response ready with their charge to each of the questions presented. Anymore, you have to do the work yourself to get a good response from the EEOC.
I keep forgetting that some people are really literal.
Of course these are questions that EEOC SHOULD ask, but it doesn't mean that each question will be asked. I didn't think I had to say that explicitly. I'm more concerned with people being prepared to answer anything asked and knowing what evaluation criteria are being used.
I am not being naive. Possible complainants should be ready for any possible question. That is the point of the post. It's about giving readers an advance idea of what questions may be thrown at them or an employer and to give them an indication of how cases should be evaluated.
By understanding the questions, a complainant can take a decision that goes against them and ask some serious questions, such as "Hey! It doesn't seem that you gave weight to X factor." If you don't know the criteria for evaluation and the questions that should be considered--that may work in your favor--you may assist others in denying you vindication of your rights.
Yes, EEOC is underfunded. That doesn't mean that certain complainants don't run across an investigator that isn't thorough.
I filed a complaint with the Office of Human Rights and I can tell you that the initial investigator read every bit of my submissions and I had submitted a lot of evidence and documents.
She was thorough. That's why she found grounds to fully investigate my former employer for discrimination and retaliation.
If it plays out correctly, my evidence will be part of the decision-making process--as it should be--and it should answer some of the many questions that SHOULD BE asked about the case.
No investigator is going to ask every question, every time. But, we need to be ready for all possible questions.
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